Martin, J.
The Appellate Court of Indiana, on May 21, 1930, purported to decide this case, its entry reading as follows: “Per Curiam.—Affirmed.” The appellants, within 60 days thereafter, filed a petition for rehearing, in which they requested the Appellate Court to state the reasons why it had affirmed the decision of the trial court, which petition was overruled July 30.
On August 28, the appellants filed in this court a petition (application) for the transfer of the case to the Supreme Court. The appellee has filed a motion to dismiss this petition on the ground that, since the Appellate Court wrote no opinion when it affirmed the judgment, its opinion does not (1) contravene any ruling precedent of the Supreme Court or (2) decide any new question of law erroneously (which are the only grounds that can
be relied upon in a petition for transfer under subd. 2, §1357 Burns 1926).
A question thus arises, which we shall consider, viz.: Does a party to an appeal in the Appellate Court have a right guaranteed by the Constitution or provided by statute to have a written opinion or statement in writing of the material questions arising in the record thereof?
The Constitution of 1816 contained no provision requiring the Supreme Court to render any of its decisions or opinions in writing) but §26, ch. 1, of the acts of 1816 provided that:
“the opinions and determinations of the Court shall be delivered in writing, except in cases and on subjects of an unimportant nature, which opinions and determinations shall be recorded by the clerk in a book kept for that purpose.”
This provision was incorporated substantially in §89, ch. 37, Revised Statutes 1843 p. 639.
The debates of the Constitutional Convention of 1850 indicate (vol. 2, p. 1862) that there was a continued disregard of this statute by the Supreme Court
which
resulted in the adoption of §5, Art. 7, Constitution 1851, §172 Burns 1926. This section reads as follows:
“The Supreme Court shall, upon the decision of every case, give a statement in writing of each question arising in the record of such case and the de- • cisión of the court thereon.”
Six years later, this court, in
Willets
v.
Ridgeway
(1857), 9 Ind. 367, said that such provision should receive a construction which would “obviate its inconvenience and objectionable character, as far as consistently can be done,”
and held that “a question arising in the record” (within the meaning of those words as used in the Constitution). must be “a question, the decision of which is necessary to the final determination of the cause; and which the record presents with a fullness and distinctness rendering it possible for the court to comprehend it in all its bearings.”
Section 15, ch. 247, Acts 1901, §1351 Burns 1926 (a substantial re-enactment of §12, ch. 37, Acts 1891--the act creating the Appellate Court) provides that:
“Appeals to the Appellate Court shall be taken in the same manner and with the same effect and subject to the same limitations and restrictions as are now or hereafter may be provided in case of appeals to the Supreme Court. . . . The rules of court, pleadings, practice and proceedings in cases assigned or transferred to .said divisions [of the Appellate Court] shall be the same as provided by or for the Supreme Court.”
Section 17, ch. 247, Acts 1901, §1361 Bums 1926 (a
substantial re-enactment of §13, ch. 37, Acts 1891
the act creating the Appellate Court) provides that:.
“In every case reversed by the Appellate Court an opinion shall be given on the material questions therein in writing and the appropriate judgment shall be entered with directions to the lower court,” etc.
By the provisions of §1351 Burns 1926,
supra
(that appeals to the Appellate Court are subject to the same limitations, restrictions, rules and proceedings as are appeals to the Supreme Court) the requirement of §5, Art. 7, Constitution 185Í, §172 Bums 1926 (that a statement in writing be made in the decision of cases appealed to the Supreme Court) is, by statute, extended to the cases appealed to the Appellate Court.
In Houston
v.
Williams
(1859), 13 Cal. 24, 73 Am. Dec. 565, it was held that a legislature has no power to impose such a requirement on the courts. This question seems not to have been raised elsewhere (except in
Speight
v.
People, ex rel.
[1877], 87 Ill. 595, and
Vaughn
v.
Harp
[1886], 49 Ark. 160, 4 S. W. 751), although statutory provisions (as well as constitutional provisions), requiring written decisions or opinions are not uncommon.
The requirement of our Constitution in this regard is onerous and burdensome, but it was placed in our basic law to cure an abuse that had occurred, and that is apt to occur when a court of appeal is not required to give reasons for its decisions, nor even to state what the questions are which are involved and its' decision thereon.
The Legislature may prescribe reasonable regulations and restrictions for the appeal of cases, and we cannot say that it is unreasonable to provide that
the same rule shall govern the Appellate Court which is enjoined by the Constitution upon the Supreme Court.
In
Craig
v.
Bennett
(1901), 158 Ind. 9, 62 N. E. 273 it was held that the requirement imposed by §5, Art. 7, Constitution 1851 upon the Supreme Court does not control the Appellate Court, while §1361 Burns requires that in every case
reversed
by the Appellate Court an opinion in writing must be given on the material points. But the court there apparently failed to take notice of the provisions and effect of §1351 Burns 1926 (then §1337o Burns 1901). If §1351 imposes upon the Appellate Court the duty of giving “a statement in writing of each question arising in the record of such case and the decision of the court thereon” in
all
cases, then §1361, providing that, “in every case reversed by the Appellate Court, an opinion shall be given on the material questions therein in writing,” is not sufficient to relieve that court of the duty imposed by §1351 (regarding all cases, which includes cases affirmed). It follows that the decision in
Craig
v.
Bennett, supra,
on this point must be overruled.
The clerk is directed to provide the Chief Judge of the Appellate Court of Indiana with a copy of this opinion, and the attention of that court is respectfully directed to the statements of law made herein.
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Martin, J.
The Appellate Court of Indiana, on May 21, 1930, purported to decide this case, its entry reading as follows: “Per Curiam.—Affirmed.” The appellants, within 60 days thereafter, filed a petition for rehearing, in which they requested the Appellate Court to state the reasons why it had affirmed the decision of the trial court, which petition was overruled July 30.
On August 28, the appellants filed in this court a petition (application) for the transfer of the case to the Supreme Court. The appellee has filed a motion to dismiss this petition on the ground that, since the Appellate Court wrote no opinion when it affirmed the judgment, its opinion does not (1) contravene any ruling precedent of the Supreme Court or (2) decide any new question of law erroneously (which are the only grounds that can
be relied upon in a petition for transfer under subd. 2, §1357 Burns 1926).
A question thus arises, which we shall consider, viz.: Does a party to an appeal in the Appellate Court have a right guaranteed by the Constitution or provided by statute to have a written opinion or statement in writing of the material questions arising in the record thereof?
The Constitution of 1816 contained no provision requiring the Supreme Court to render any of its decisions or opinions in writing) but §26, ch. 1, of the acts of 1816 provided that:
“the opinions and determinations of the Court shall be delivered in writing, except in cases and on subjects of an unimportant nature, which opinions and determinations shall be recorded by the clerk in a book kept for that purpose.”
This provision was incorporated substantially in §89, ch. 37, Revised Statutes 1843 p. 639.
The debates of the Constitutional Convention of 1850 indicate (vol. 2, p. 1862) that there was a continued disregard of this statute by the Supreme Court
which
resulted in the adoption of §5, Art. 7, Constitution 1851, §172 Burns 1926. This section reads as follows:
“The Supreme Court shall, upon the decision of every case, give a statement in writing of each question arising in the record of such case and the de- • cisión of the court thereon.”
Six years later, this court, in
Willets
v.
Ridgeway
(1857), 9 Ind. 367, said that such provision should receive a construction which would “obviate its inconvenience and objectionable character, as far as consistently can be done,”
and held that “a question arising in the record” (within the meaning of those words as used in the Constitution). must be “a question, the decision of which is necessary to the final determination of the cause; and which the record presents with a fullness and distinctness rendering it possible for the court to comprehend it in all its bearings.”
Section 15, ch. 247, Acts 1901, §1351 Burns 1926 (a substantial re-enactment of §12, ch. 37, Acts 1891--the act creating the Appellate Court) provides that:
“Appeals to the Appellate Court shall be taken in the same manner and with the same effect and subject to the same limitations and restrictions as are now or hereafter may be provided in case of appeals to the Supreme Court. . . . The rules of court, pleadings, practice and proceedings in cases assigned or transferred to .said divisions [of the Appellate Court] shall be the same as provided by or for the Supreme Court.”
Section 17, ch. 247, Acts 1901, §1361 Bums 1926 (a
substantial re-enactment of §13, ch. 37, Acts 1891
the act creating the Appellate Court) provides that:.
“In every case reversed by the Appellate Court an opinion shall be given on the material questions therein in writing and the appropriate judgment shall be entered with directions to the lower court,” etc.
By the provisions of §1351 Burns 1926,
supra
(that appeals to the Appellate Court are subject to the same limitations, restrictions, rules and proceedings as are appeals to the Supreme Court) the requirement of §5, Art. 7, Constitution 185Í, §172 Bums 1926 (that a statement in writing be made in the decision of cases appealed to the Supreme Court) is, by statute, extended to the cases appealed to the Appellate Court.
In Houston
v.
Williams
(1859), 13 Cal. 24, 73 Am. Dec. 565, it was held that a legislature has no power to impose such a requirement on the courts. This question seems not to have been raised elsewhere (except in
Speight
v.
People, ex rel.
[1877], 87 Ill. 595, and
Vaughn
v.
Harp
[1886], 49 Ark. 160, 4 S. W. 751), although statutory provisions (as well as constitutional provisions), requiring written decisions or opinions are not uncommon.
The requirement of our Constitution in this regard is onerous and burdensome, but it was placed in our basic law to cure an abuse that had occurred, and that is apt to occur when a court of appeal is not required to give reasons for its decisions, nor even to state what the questions are which are involved and its' decision thereon.
The Legislature may prescribe reasonable regulations and restrictions for the appeal of cases, and we cannot say that it is unreasonable to provide that
the same rule shall govern the Appellate Court which is enjoined by the Constitution upon the Supreme Court.
In
Craig
v.
Bennett
(1901), 158 Ind. 9, 62 N. E. 273 it was held that the requirement imposed by §5, Art. 7, Constitution 1851 upon the Supreme Court does not control the Appellate Court, while §1361 Burns requires that in every case
reversed
by the Appellate Court an opinion in writing must be given on the material points. But the court there apparently failed to take notice of the provisions and effect of §1351 Burns 1926 (then §1337o Burns 1901). If §1351 imposes upon the Appellate Court the duty of giving “a statement in writing of each question arising in the record of such case and the decision of the court thereon” in
all
cases, then §1361, providing that, “in every case reversed by the Appellate Court, an opinion shall be given on the material questions therein in writing,” is not sufficient to relieve that court of the duty imposed by §1351 (regarding all cases, which includes cases affirmed). It follows that the decision in
Craig
v.
Bennett, supra,
on this point must be overruled.
The clerk is directed to provide the Chief Judge of the Appellate Court of Indiana with a copy of this opinion, and the attention of that court is respectfully directed to the statements of law made herein.
In the case under consideration, the judgment of the Appellate Court has not been certified to the lower court. It follows from what has been stated that the parties are entitled to a decision and judgment herein by the Appellate Court in the manner directed by §5, Art. 7, Constitution 1851, §172 Burns 1926 and §1351 Burns 1926, that no such judgment has been rendered and that the cause is still pending in the Appellate-Court for a proper decision.
The appellees’ motion to dismiss appellant’s petition to transfer, being founded on the incorrect premise that
a valid decision and judgment was rendered by the Appellate Court, is insufficient and is overruled.
A petition to transfer being authorized only after a valid decision and judgment has been rendered, and a petition for rehearing of the same has been overruled, the appellant’s petition is dismissed.
In making the foregoing decision, the court is not unmindful of the fact that, in addition to overruling
Craig
v.
Bennett, supra,
it is, in effect, overruling its former uniform action in denying petitions to transfer in cases where the Appellate Court gave no written decision or opinion. Under the law as stated herein, these former rulings on petitions to transfer are erroneous, but, they must, of necessity, remain the law of those cases. Likewise, in all disposed-of cases in which the Appellate Court has entered judgments of affirmance without written opinions or decisions and such judgments have been certified to the lower court (after the expiration of the time in which they could be attacked), they must remain the law of such cases.
Travis, J., dissents.
Myers, C. J., concurs in the result.